I went as a guest to a big function recently that was organized by a major corporation to honor its long-service employees. There must have been close to a thousand people in the ballroom. The program began with a prayer, as if the organizers did not care that in such a large group there would be a significant number who did not share the religious views of the prayer-giver. I am of course used to this kind of public piety.
This event was organized by a private company and they can do what they like. What really annoys me is when government bodies start their meetings with prayers. But this practice has been going on for so long in the US that people have become resigned to it. But in a surprise move (at least it was a surprise to me), the US Supreme Court just decided to hear a case on whether it is constitutional to open meetings of government agencies with a prayer.
The reason that it is a surprise is that although I personally oppose the practice and think that is violates the Establishment Clause of the US Constitution, I thought that it was one of those things (like saying ‘under God’ in the pledge of allegiance and the use of ‘In God We Trust’ on currency and other places) that the court had decided to accept as either largely symbolic gestures that had been drained of all religious significance or that it was a trifle that was unlikely to be the cusp of a slippery slope that would result in an established church.
The last time the Supreme Court had debated the issue of opening prayers at government meetings was in 1983 in the case Marsh v. Chambers. In that case the Nebraska state legislature had started each of its sessions with a prayer by its chaplain. For nearly twenty years the prayer had been uttered by the same Presbyterian minister who was paid a monthly salary for his services.
Ernest Chambers, a member of the state legislature, sued to stop the practice, saying that it was a violation of the Establishment Clause. The District Court ruled that while the prayer was constitutional, paying the chaplain out of public funds was not. The Eighth Circuit Court of Appeals ruled that the combined package of prayers and paying the chaplain violated the Lemon Test. “[T]he court held that the chaplaincy practice violated all three elements of the test: the purpose and primary effect of selecting the same minister for 16 years and publishing his prayers was to promote a particular religious expression; use of state money for compensation and publication led to entanglement. Accordingly, the Court of Appeals modified the District Court’s injunction and prohibited the State from engaging in any aspect of its established chaplaincy practice.”
The US Supreme Court decided to hear that case and in a 6-3 verdict reversed the Appeals Court ruling, showing what I thought was excessive deference to tradition and religious sensitivities (citations removed):
The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.
…This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged. We conclude that legislative prayer presents no more potential for establishment than the provision of school transportation, Everson v. Board of Education (1947), beneficial grants for higher education, Tilton v. Richardson (1971), or tax exemptions for religious organizations, Walz.
…
The Court of Appeals was concerned that Palmer’s long tenure has the effect of giving preference to his religious views. We cannot, any more than Members of the Congresses of this century, perceive any suggestion that choosing a clergyman of one denomination advances the beliefs of a particular church. To the contrary, the evidence indicates that Palmer was reappointed because his performance and personal qualities were acceptable to the body appointing him.
Since 1983, the Supreme Court has ruled on two other public prayer cases. In 1992 in Lee v. Weisman the court ruled 5-4 that having prayers at graduation ceremonies in public schools was unconstitutional, arguing that those prayers involved significant official involvement and that student attendance was more-or-less compulsory. In 2000, the court said in a 6-3 ruling in Santa Fe Independent School District v. Doe that a school district’s practice of having one student deliver a prayer over the public address system before each home varsity football game was unconstitutional.
The case the Supreme Court has just chosen to hear emerges from the town of Greece, a suburb of Rochester, NY, in which the Town Board had been having opening prayers since 1999. This practice was challenged by two women (one Jewish, the other atheist) who were not objecting to prayers as such but that almost all the prayers were delivered by Christians, thus indicating a preference for one religion over others. The District Court upheld their challenge. The town appealed the verdict but the Second Circuit Court of Appeals rejected their claim. But the court was careful to assert that it was not issuing a blanket ruling against prayers to open government meetings but only this particular practice, because by having prayers from mainly one religion, the town was essentially aligning itself with Christianity.
So why would the Supreme Court want to take on this case? After all, they had previously rejected three similar cases. It takes just four of the nine judges to agree to take on a case and the public is not told who wanted to or the reasons for the decision. It may be that the court felt forced to step in since Appeals Courts in Georgia and North Carolina had ruled in different ways. It may be that they wanted to look at the case narrowly and clarify whether it was constitutional for government bodies to have prayers exclusively or overwhelmingly from one religion. There are some who argue that the Establishment Clause only requires neutrality between religious sects and does not also require neutrality between religion and non-religion, though the more comprehensive view of neutrality has been the Supreme Court precedent ever since the landmark Everson v. Ewing case of 1947.
Or did the court want to revisit more broadly the issue of prayer at governmental functions? If so, is it that they want to ban such prayers altogether (which is unlikely) or do they want to expand the role of religion in public life? The oral arguments (which have not yet been scheduled) will shed some light on this.
I suspect there are three clear votes to allow it, and probably two who are willing to accept them on a tradition basis, so they probably decided to hear it to put a stop to such challenges.
I am sure this is bad news. It is highly unlikely that there are five votes to restrict prayer further and the Supremes presumably want to make some change to existing law or they wouldn’t have taken the case.
This is from the table of contents of a brief submitted on behalf of 49 members of Congress:
Quote:
CONGRESS LONGSTANDING LEGISLATIVE PRAYER PRACTICE WOULD BE UNCONSTITUTIONAL UNDER THE SECOND CIRCUIT’S MULTIFACTOR TEST
A. With only rare exceptions, legislative prayers in Congress are offered by self-identified Christians.
B. The majority of legislative prayers in Congress include explicit Christian content
C. Almost all legislative prayers in Congress use the first-person plural pronoun.
III. THE THREE -- WAY CIRCUIT SPLIT CREATED BY THE SECOND CIRCUIT’S DECISION CREATES UNCERTAINTY ABOUT THE CONSTITUTIONALITY OF CONGRESS’ LONGSTANDING LEGISLATIVE PRAYER PRACTICE
Quote:
Since its creation, the United States House of Representatives has begun its daily sessions with prayer. Both chambers of the First Congress passed resolutions to hire a salaried chaplain, whose foremost duty is to open each session with a formal invocation seeking the blessing of God on the people’s elected Representatives as those leaders discharge their official duties.
Amici curiae are 49 Members of Congress in the United States House of Representatives, and are individually named in the appendix to this brief. These elected Representatives regard legislative prayer as important for policymaking bodies, both to solemnize official occasions and to seek God’s blessing, wisdom, and guidance in making consequential decisions.
I doubt this will go the right way, but they may rule very narrowly because, I believe in this specific case, the prayers are mandatory and actually required by the bylaws. They might simply rule that specific thing is unconstitutional, but leave the act itself intact, even with the strong xian bias it currently displays.
I don’t think Greece pays the people that do the prayers, so they might just rule on standing and throw it out, as well. That would almost be worse, because it gives cities and towns across the country an easy way out.
Why not invoke the Muslim Test: What if the prayers were predominantly Muslim? Or Jewish? Would these people just as eager to keep the prayers if they came from a tradition other than their own? These prayers serve one purpose, which is to inject religion into public life. People can pray privately until they are blue in the face, and that’s their business, but keep it out of government functions.
Holy non sequitur, batman. The majority approved of the choice of chaplain, so clearly it couldn’t have been done to “advance[] the beliefs of a particular church”? Say what?